Most patents issue within three years of their respective filing dates with the median for patents issued in 2014 sitting at 34 months. In 2010, that median pendency rose to a decide-high of 41 months. Since that time, the USPTO has been working steadily to reduce its large backlog of pending cases. An item of concern is that about 15% of recently issued patents have a pendency of more than five years.

For patents issued thus far in 2014, the one with the longest pendency is U.S. Patent No. 8,688,181 issued to IBM and with a US filing date of 09/09/1994. The application actually claims priority through a chain of abandoned continuation applications back to a 1987 EPO Filing by Nobel Prize winning physicists Johannes Georg Bednorz and Alex Mueller. While working for IBM Bednorz and Mueller discovered “high-temperature” superconductivity in ceramics. The patent claims:

A method, comprising:

forming a composition including a transition metal, a rare earth or rare earth-like element, an alkaline earth element, and oxygen,

where said composition is a mixed transition metal oxide having a non-stoichiometric amount of oxygen therein and exhibiting a superconducting state at a temperature greater than 26°K,

maintaining said composition in said superconducting state at a temperature greater than or equal to 26°K, and

passing an electrical current through said composition while said composition is in said superconducting state.

 

54 thoughts on “

  1. While not a huge fan of this type of graph for data presentation, one aspect that is highlighted here are trends on efficiency of time processing.

    Of course, a larger scale time window would be interesting, but look at the mess in sliding completion time under the Dudas regime: even in a Reject-Reject-Reject era (and how much time does it take to reject something), the completion times across the board slide negatively.

    In comes Kappos and the end of the Reject-Reject-Reject era and look at that: completion times improve across the board – even under (not seen in the graph) increasing application load and phase in of a major new set of laws.

    Exit Kappos and look at the stall of improvement (again, nearly across the board).

    Hey Obama, take note: with no one** with hands on the wheel, you are drifting backwards.

    ** – no one in a duly recognized and properly vetted position – shadow kings not withstanding.

  2. While some may laud the “Most patents issue within three years of their respective filing dates with the median for patents issued in 2014 sitting at 34 months” “achievement (approx 56 %), the fact of the matter remains that this actually means that the Office FAILS to live up to its guarantee of concluding examination within three years 44% of the time. See link to uspto.gov

    By any measure, missing a guarantee at a 44% rate is not something to be lauded.

    1. The three-year guarantee doesn’t apply if the applicant files an RCE. Do the stats above filter out applications where an RCE was filed?

      1. Three years is absurd if there were 20 RCEs per application since the actual examination time allowed for a first Office Action is on the order of 2.5 days. Even if the final Office Action is allowed a similar time frame, the whole ordeal should be over in a week.

            1. I’m not sure what your point is. They aren’t hitting the 14 month to first Office Action promise either. There aren’t any applicant response times in that. Why is it 14 months and not 14 days?

            2. They aren’t hitting the 14 month to first Office Action promise either.

              I don’t have date for that, but generally speaking, I do tend to believe that.

              The rationale for not 14 days is OK with me – they do have a lot of applications. But the guarantees were sought in negotiation for the (huge) change in protocol from a strict confidence level to a default publication at 18 month level (which can still be opted for under certain conditions). The point of the time guarantees however was to provide enough feed back to the applicant so that the applicant could make an informed decision as to whether or not to continue to attempt to patent or to expressly abandon and avoid publication – avoid the giving of the Quo with obtaining no Quid.

              People – far far far too many people have lost sight of the foundational aspect of that Quid Pro Quo.

      2. Apotu,

        You are correct and I inquired as to a possible distinction indirectly with my posts at 3 and 2.1.1.

        I am open to changing that 44% number when (if) a better number is available.

    2. there really is no excuse for a patent system which cannot issue all first actions within a year.

      1. The statutory response time is outside of the PTA guarantees 6.

        Of course, you probably already knew that, right?

      2. And of course, since those statutory response times have held steady throughout the graph time scale, the EFFECTS shown in the graph can safely be said to NOT be effected by those statutory response times.

        (but you might need to think a little to get to that understanding)

  3. ” where said composition is a mixed transition metal oxide having a non-stoichiometric amount of oxygen therein and exhibiting a superconducting state at a temperature greater than 26°K,

    maintaining said composition in said superconducting state at a temperature greater than or equal to 26°K, and

    passing an electrical current through said composition while said composition is in said superconducting state.”

    So MM… which is it, is this more functionally claimed junk or a claim to the abstract idea of “superconductors” made of any combination of the only known components of superconductors as long as it superconducts or a combinations of notoriously well known classes of elements (literally) with the “point of novelty” functionally claimed?

    1. notoriously well known classes of elements (literally)

      LOL – the analogy of my big box of electrons, protons, and neutrons leaps to mind.

    2. Les: is this more functionally claimed junk

      Well, there is some functional language in this method claim. Congratulations on being able to spot the issues.

      There is also some objective physical structure:

      forming a composition including a transition metal, a rare earth or rare earth-like element, an alkaline earth element, and oxygen,

      where said composition is a mixed transition metal oxide having a non-stoichiometric amount of oxygen therein

      which is more objective physical description than you’ll ever find in the typical computer-implemented junk claims that you love so deeply.

      That said, the claim still seems pretty broad and could be attacked under 112 or maybe 101. I’m not familiar enough with the prior art to articulate the argument.

      In any event, I’m already on the record stating that the patent should not be granted (or enforceable). It’s absurd to grant patents on 30 year-old technology.

      [shrugs]

      1. “That said, the claim still seems pretty broad and could be attacked under 112 or maybe 101. I’m not familiar enough with the prior art to articulate the argument. ”

        There it is in a nut shell…

      2. There is also some objective physical structure

        LOL.

        Kind of like a machine or processor or other machine component, right (for a certain different art field)?

        1. Kind of like a machine or processor or other machine component

          If you think “a composition including a transition metal, a rare earth or rare earth-like element, an alkaline earth element, and oxygen, where said composition is a mixed transition metal oxide having a non-stoichiometric amount of oxygen therein” is comparable to the recitation of “a machine” then you’re even sillier than I thought.

          1. Your very odd attempt to dissemble as if I wanted to draw a direct comparison from machine or manufacture to being a composition aside (no reasonable person would attempt such), you do recognize that manufacture and machine are patent eligibile categories, right?

      3. In any event, I’m already on the record stating that the patent should not be granted (or enforceable). It’s absurd to grant patents on 30 year-old technology.

        [shrugs]

        Being “on the record” without actually supporting why you are on the record is really not saying all that much.

        Plus, given the piles of CRP that you have stepped in (and there are several) when you have attempted to say something, maybe your best bet is to just slink away in quiet.

  4. Superconductive computer system patent applications inundated the USPTO when I joined AU 230 in 1965. IBM flooded it with 400+ page applications that we tried to examine. By now any that issued have expired.

    The only novelty expressed in this claim may be somewhere in the steps of:

    “forming a composition including a transition metal, a rare earth or rare earth-like element, an alkaline earth element, and oxygen,

    [is this defining a novel composition? Probably not!]

    where said composition is a mixed transition metal oxide having a non-stoichiometric amount of oxygen therein and exhibiting a superconducting state at a temperature greater than 26°K,”

    So, is the only novelty the temperature range? Or a non-stoichiometric amount of oxygen?” This claim expresses no meaningful limitations over the wish list of the prior art in this field.

    In other words, claims like this state “I have solved the well known problem and I claim all possible solutions and do not have to limit my claims to (or explain) how I did it.”

    Is this right?

    1. Superconductive computer system patent applications inundated the USPTO when I joined AU 230 in 1965. IBM flooded it with 400+ page applications that we tried to examine. By now any that issued have expired.

      (sigh)

      So many wrong things indicated in this statement…
      Lots of QQ – flood, 400+, tried,..
      The answer to that: you were paid to do your job, right?

      1965, expired…
      Um, perhaps you are aware of the change in term calculation and the fact that there are still applications in the office that when (if ever) are duly examined and granted will have term commencing from grant date, right?

      Is this right?
      You tell me – that after all, is your job, right?

    2. Joe, this claim seems to claim a composition by its effects. The form of the claim is a method, but the method steps seem old and routine.

      Does not seem definite under Perkins Glue.

      1. Would you be happier if it recited comprising (or consisting of -as appropriate): effective amounts (or ratios) of:

        1. “effective”

          “dimensioned so as to”

          Frederico.

          Um, we have had this conversation before. Let’s all just remember that a claim is read in the shoes of a person having ordinary skill in the art to which the inventions pertains and informed by the specification before we get all excited and try to ride yet another merry-go-round.

        2. Les, it just seems to me that everything in the claim is old except for the composition. But then one must ask, given the way the composition is claimed, do all iterations of the claimed constituents provide the claimed benefit?

          That is the problem from my view. Since I do not have the disclosure before me, or the prosecution history, I rely on Joe’s experience to suggest that the claim simply is too broad and indefinite.

          1. I think the problem is that the claim is not bounded above, which is sure to have enablement problems. Their real contribution was to take what was to put fire in what was considered a completely dead backwater of a field. I worked on the same hallway as a superconductor person back in 1986/1887 and the effect of their discovery was galvanic to the field. It was a dead limb of science jumping to life. It was amazing. And you can’t patent that.

            1. Erik,

              You may be correct with an unbounded above claim.

              Of course, we both know that claims are read with the understanding of a person having ordinary skill in the art to which the invention pertains, informed by the specification.

              It may (or it may not) be determinable for such a PHOSITA any inherent upper bounds presented by the existing words of the claim.

    3. “Superconductive computer system patent applications inundated the USPTO when I joined AU 230 in 1965. IBM flooded it with 400+ page applications that we tried to examine. By now any that issued have expired.”

      “In other words, claims like this state “I have solved the well known problem and I claim all possible solutions and do not have to limit my claims to (or explain) how I did it.” ”

      So, as a representative of the Office, are you complaining that the application was too long or too short?

      Pray tell, what did the 400+ pages describe if not “how I did it”?

  5. It might be interesting to segregate out those filings (continuations and divisionals) that perhaps do not need a full examination time cycle to see if any “padding” has been going on, of how such family applications may be skewing the response times…

  6. Does the “white” at the top of the graph mean anything?
    Why does the cumulative for each year not add up to 100?

      1. Thanks.

        Then, with the deck chairs skewed ever more so with the treatment of RCE’s, that white space can be expected to continue to increase…?

        1. Dennis – The comment system is doing something strange (math maybe?)

          I twice now have typed the symbols for “less that 2 greater than 1″ and what gets posted is only “1″. Lets see if spaces help…

          1

          1. It’s probably interpreting it as an HTML tag and filtering it out because it’s not one of the approved tags.

        2. Les,

          Typically this type of graph treats each set of data non-cumulatively, such that the entire set of date rises to the top of the graph and accounts for 100% of the data in total.

          In this regards, the second set of data would be all items with dates of 1 year up to but not including 2 years (and not including those dates less than one year). My question about the “white space” on top at post 2 was to confirm this. Note that such white space is open-ended, and somewhat limiting the intuitive grasp of the underlying data (see post 7 for comments as to what this type of graph is more amenable for.

  7. While working for IBM Bednorz and Mueller discovered “high-temperature” superconductivity in ceramics.

    Almost thirty years ago. And we’re giving IBM a patent in 2014?

    Too funny. How are olewhatshisname’s submarine applications doing, by the way?

          1. Hmmm,

            By reading the notes and sketches of Leonardo’s submarine, scientists discovered that there would not be enough mechanics for this submarine to actually submerge under water

            (reminds me of the inclusion of science fiction as “prior art”)

    1. US filing date of 09/09/1994. The application actually claims priority through a chain of abandoned continuation applications back to a 1987 EPO Filing by Nobel Prize winning physicists Johannes Georg Bednorz and Alex Mueller.

      And we’re giving IBM a patent in 2014?

      Do you have reason to believe that IBM should not be given a patent? Do you think it proper that the Office be permitted to simply stall and run out the clock on any patent application that it may deem to sit on? Are you that jaded so as to simply not care at all about any sense of due process?

      (and yes, these are rhetorical questions)

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